Supreme Court must interpret Constitution to ensure right to privacy (Faizan Mustafa)

In India, people have the right to life, but fake encounters and mob lynching happen. In spite of the right to free speech, publications feel compelled to withdraw articles critical of government or corporates. There is a right to equality but discrimination is still rampant.

When the mention of fundamental rights in the Constitution is not able to ensure their full implementation on ground, one wonders what will happen if privacy is not recognised as a fundamental right. In such a situation, citizens may not have protection against surveillance and even profiling by the state, the state could target those who speak against it, even voting preferences may be influenced, telephone tapping could be routinely resorted to and our mails intercepted. This is indeed a terrifying prospect.

The right to privacy is not explicitly mentioned in the Constitution. But then the right to “due process” too was not there and, in fact, was dropped by the framers of the Constitution. Yet, the apex court read it into the “right to personal liberty”. The court, in fact, silently brought about what may be called a “rights revolution” by judicially creating several fundamental rights.

When the democratic state turned totalitarian under Indira Gandhi and started abusing its powers to amend the Constitution, the Supreme Court as protector of civil liberties stood firm and applied the brakes first, in 1967, by denying Parliament power to amend the Constitution and then, in 1973, through the “basic structure” doctrine which too is not there in the text of the Constitution.

If the text of the Constitution alone is going to determine the nature of the right to privacy, then the collegium system, the right against arbitrariness and the freedom of press too could go soon. Voluntary surrender of personal information to private entities cannot be equated with mandatory data collection by the state. The right to privacy judgment will be a litmus test for the apex court.

Will the court follow the rich traditions of 1967 and 1973 and rise to the challenges of the information age? One hopes there would not be another ADM Jabalpur (1976) kind of decision where the majority accepted the government’s argument that when the right to life and personal liberty is suspended, citizens have no remedy against illegal detention.

It is erroneous to believe that eight- and six-judge benches have authoritatively held that there is no right to privacy. In the Satish Chandra case (1954), the fundamental question was whether the state’s power of search and seizure violated the right against self-incrimination under Article 20(3). In a positivist mould, the court refused to read right to privacy under this provision.

Then came the Kharak Singh (1963) case where a dacoity accused was released and put under surveillance. Police constables would knock at his door, wake him up during night and disturb his sleep. The majority conceded that “everyman’s home is his castle” and struck down domiciliary visit regulations. But without any elaborate discussions, the court yet again said that there was no fundamental right to privacy in India.

But there was the powerful dissenting judgment of Justice Subba Roa, with whom Justice J.C. Shah concurred. They argued that even though the right to privacy is not specifically mentioned in the Constitution, it is a necessary ingredient of the right to personal liberty. In the Gobind case (1975) the minority opinion of Kharak Singh case became the majority opinion. The court has recognised right to privacy as an integral part of right to personal liberty. Today, liberty is a part of the basic structure of the Constitution.

Despite the recognition of privacy as a fundamental right, the government will continue to have powers to impose “reasonable restrictions”. It is no body’s case that the right to privacy is an absolute right. Moreover, global experience shows that the denial of privacy neither promotes national security nor curbs terrorism, it merely takes away citizen’s freedom to be left alone and curtails his/her choice in personal decisions.

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